Personal injury law

Negligent claimant

Anderson v Newham College of Further Education, Court of Appeal (Lord Justice Sedley and Sir Denis Henry),25 March 2002

Mr Anderson was employed at the defendant's college as a mobile site supervisor.

On entering a classroom, he tripped over the feet of the frame of a whiteboard which was standing against a wall.

This piece of furniture is 6ft 6ins high and if its feet had been properly placed, pointing towards the wall, passers-by would have been able to pass it in safety.

The judge at first instance found that the defendants were in breach of the requirement in regulation 12(3) of the Workplace (Heath & Safety at Work) Regulations 1992 that '...every floor in a workplace and the surface of every traffic route ...

shall be kept free from obstructions ...'.

However, he found the claimant to be at fault for not seeing and avoiding the hazard, and reduced his claim by 90% for contributory negligence.

The defendants surprisingly appealed and relied on the case of Jayes v IMI (KYNOCH) Limited 1985 ICT 155 in which Mr Justice McPherson found a workman 100% contributorily negligent.

In analysing Lord Justice Goff's judgment in the Court of Appeal, Lord Justice Sedley properly identified an important difference between finding a claimant wholly to blame for the accident and 100% contributorily negligent.

He described the phrase '100% contributorily negligent' as 'unhelpful' in that it invites the court to treat a statutory qualification of the measure of damages as if it were secondary to liability, which of course it is not.

In other words, contributory negligence can reduce the value of a claim but it cannot nullify the legality of the claim.

Their lordships relied on Boyle v Kodak 1969 1WLR 661 in the House of Lords and section 1 of the Law Reform (Contributory Negligence) Act 1945 which states that '...

a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage.'

As Lord Denning said in Davis v Swann Hunter Company 1949 CA, 'if the plaintiff's negligence is one of the causes of his damage, he is no longer defeated altogether.

He gets damages'.

That case was, surprisingly, not cited.

It is interesting to see Lord Justice Sedley's view that the phrase '100% contributory negligence' is unhelpful.

Perhaps he ought to tell his fellow Appeal Court judges, for the same phrase was used in circumstances in which the claimant was solely to blame for an accident in the unreported case of Pratt v Intermet Refracteries Limited, Court of Appeal, 21 January 2000.

Lord Justice May stated that the accident 'was caused by [the claimant's] own inattention to a readily visible piece of wood or, to put the same thing another way round, there was 100% contributory negligence'.

In the instant case, the Court of Appeal increased the claimant's claim to 50%.

Where there has been a breach of statute or common law that is at all causative of the claimant's injuries, his claim cannot wholly be defeated by his actions.

However, we may see the unfortunate '100% contributory negligence' phrase littering more judgments from the Court of Appeal.

By Simon Allen, Russell Jones & Walker, Sheffield